授权立法的事前审查

Prior Review of Delegated Legislation

事前审查是立法程序的组成部分,从属于立法审查,目的是提高立法质量,维护宪法秩序的统一。授权立法属于立法机关的审查范围,这是各国议会委员会之通例,其依据是三权分立、立法机关独占立法权及同意权之保留。我国授权立法采取授权决定+立法模式,虽名为行政法规,其实质属于法律,其理论和规范依据是人民主权、民主集中制和《立法法》第12条。更名后的宪法和法律委员会已经对多部授权立法决定予以审查,包括形式审查和实质审查。前者指授权立法须形式合法、不得超越授权范围、符合授权事项、不得逾越授权期限;后者指授权立法须符合党中央方针政策、宪法与法律。应适时修法,增加对国务院依据授权决定所立之法的审查,完善对授权立法的事前监督。

As an integral part of the legislative process,prior review subordinates to the legislative review with the purpose of improving the quality of legislation and maintaining the unity of constitutional order.That delegated legislation falls within the review scope of legislative bodies is the general practice of parliamentary committees in each country,which is based on“separation of the three powers”,the exclusive legislative power of the legislature,and the reservation of the power of consent.China's delegated legislation adopts the model of authorized decision and legislation.Although it is called administrative regulation,it's actually a law,and its theory and norms are based on popular sovereignty,democratic centralization and Article 9 of the Legislation Law.The renamed Constitution and Law Committee of the NPC has reviewed several authorized legislative decisions,including its form and content.The former means that the authorized legislation must be legal in form,must not exceed the authorized scope,conform to the authorized items,and must not exceed the authorized period;the latter means that delegated legislation must conform to the policies of the CPC Central Committee,the Constitution and laws.It is necessary to amend the law timely,increase the review of the law enacted by The State Council according to the authorization decision,and perfect the prior supervision of the authorized legislation.